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Australian Migration Laws : Section 201 And 501

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Question:

Describe about the Australian Migration Laws for Section 201 and 501.

 

Answer:

Letter of Advice in Relation to section 201 and section 501 of the Migration Act

There are two important laws that identify the conditions to use in cancelling the visa of an immigrant and deporting him back to his country. These laws are section 201 of the 1958 Australian Immigrant Act and section 501 of the same act[1]. As an immigrant, Billy has stayed for more than 15 years in Australia and because of his criminal activities; he has been sentenced to five years in prison. Therefore, chances are high that his visa will be cancelled based on sec 501 of the immigration act. This letter is an advice to Billy, on the legislations and requirements of section 201 and 501, and his options, if the minister cancels his visa.      

Section 201 of the 2001 Migration Act allows immigration officials to deport a non-citizen who has resided in Australia for a period of not more than 10 years. Therefore, for this law to apply, the victim must be convicted of a criminal offence. The offence must be serious; whose punishment should not be less than a year. Basing on these facts, the offences that Billy committed are very serious, since they attracted a penalty of five years in prison. However, under s 201 of the Migration Act, the visa of Billy cannot be revoked, nor can he be deported back to New Zealand. This is because he lived in Australia for more than ten years. However, there are some exemptions that can allow the Minister of Immigration to cancel the visa of Billy. This exemption touches on the character of Billy and they are found in section 501 of the Immigration Act.

On this note, before the cancellation of a visa, section 501 identifies two stages that can be used in the decision making process. The first stage is to identify whether the victim passes the character test, as spelt out in 501 (6)[2]. Subsection 501 (6) identifies the grounds in which an immigrant may fail the character test. These grounds are divided into five group or categories. These categories are whether the criminal record of the immigrant is substantial, whether the immigrant has broken the terms of his visa and determining any association that the immigrant has with criminal gangs. Others include the capability of the immigrant to commit crime in future and the existence of a past criminal record against the immigrant.

Therefore, if the minister is satisfied that the immigrant meets the threshold of these tests, he triggers the second stage of the decision making process, as identified in section 501. It is at this stage, that the Minister can make a decision on whether to cancel the visa or not. During this process, the minister can rely on section 499 of the Migration Act[3]. This act gives a Minister the power of coming up with directions, and authorizing institutions formed under the act to act in accordance to the directions. Currently, ministerial direction 55 is used as a guide to cancel and revoke the visa of an immigrant. The following are the main considerations given, when the immigration department seeks to cancel a visa based on direction 55; protecting the people of Australia from criminal activities of the immigrant, protecting the interests of a minor and implementing the international obligations it owes to the immigrant.

Basing on these facts, it is possible to denote that under Direction 55, Billy can be deported back to New Zealand. This is because he is a convicted pedophile; hence, his presence in Australia would threaten the safety of children. He has also been convicted of a criminal activity that is causing death through drunken driving. All these satisfy the guidelines that are identified by Ministerial Directive 55, on the cancellation and revocation of a visa[4]. It is important to note that once a visa is revoked, the process of getting another visa or remaining in Australia is very low. In as much as it is possible to appeal against the sentence, chances of success are always low and the judicial process that follows after the application is complex. 

In this scenario, the option that you have is to appeal against the decision by the Minister of Immigration to the Federal Circuit Court. This court has the power and mandate to review some of the decisions that are made under the 1958 migration act. This includes the decisions that are made by the Minister, the Immigration Assessment Authority and the Administrative Appeals Tribunal[5]. In as much as the Circuit Court may have the jurisdiction to carry out a Judicial Review, it will only concentrate on examining whether a jurisdictional error occurred.

The court will analyze if the law has been breached while revoking the visa, and the remedies it can provide are, referring the case back to the Minister or preventing the Minister from implementing his decision. However, the court cannot analyze the case based on the reasons for the revocation of the visa. The court will not admit any new evidence, unless it aims at proving that an error of the law was made by the Minister while revoking the visa. A good example of a judicial review heard by the Federal Circuit Court is Wei versus the Minister of Migration[6]. In this case, Wei was a Chinese student and his visa was revoked because of violating the terms of his visa, through an extended time. However, it is the university that failed to issue a confirmation of enrollment on time. The circuit court agreed to hear the appeal based on determining whether there was a jurisdictional error or a breach in procedural fairness.

To conclude, the Minister of Migration cannot revoke your visa based on s 201 of the Migration Act. This is because a person who has lived in Australia for more than ten years cannot be deported nor his visa cancelled. However, s 501 of the Migration Act provides circumstance where the minister can cancel or revoke the visa of an immigrant[7]. For this to happen, the immigrant must fail the character test. For instance, the immigrant must be convicted for a period of more than one year, he must be a threat to minors and must have violated the terms and conditions of his visa. Based on these facts, your visa can be cancelled because you do not pass the character test. However, the decision of the Minister can be appealed at the Federal Circuit Court. The grounds of appeal must be based on a jurisdictional error. 

 

Yours Faithfully

The Grounds a Minister can cancel Billy’s Visa.

Revocation or cancellation of a visa has the capability of causing a serious violation of the human rights of the victim. Therefore, the discretionary powers of the Minister to cancel or revoke a visa are always subjected to a limited process of review. This means that few institutions that are established in the constitution and under the migration act can overrule the decision of the Minister to cancel a visa or the decision of a tribunal on migration matters. As mentioned earlier on, section 501, 501A and 501B of the 2001 Migration Act provides the Minister with powers that can help him protect the interests of the immigrants and that of the people of Australia[8]. These powers are,

  • Capability to cancel the visa of an immigrant or refuse their application.
  • Cancel the decision of the immigration officers and that of the tribunal, substituting it with his decision on whether to grant or cancel a visa.

However, the Minister will interfere with the decision of immigration officials only if the matter being handled has elicited a significant amount of public interest. It is important to note that while coming up with these decisions, the Minister does not have to follow Direction No 55. This is because the Minister has a power of coming up with his own Direction, as long as the directions does not contradict the 2001 Migrations Act or the laws of Australia. The legislation giving the Minister Powers to create his own Directive is section 499[9]. Furthermore, the migration tribunals and the migration officers can only challenge the legality of the Directives, and take the case for judicial review.     

In the case of Billy, there are a number of grounds that a minister can cancel the visa belonging to him. The first ground is that Billy does not pass the character test. Billy has failed the character test in two major ways. The first failure is that he is a convicted criminal, who has been sentenced to five years in prison. Billy is also a pedophile, and he is guilty of sexually molesting young girls. Section 501 (6) provides guidance on what constitutes a bad character. According to section 501 (6), a person will not pass a character test if he has a substantial criminal record[10].

Section 201 of the Criminal Act provides information on what a substantial criminal record is. A substantial criminal record is where an individual has been sentenced to more than one year in prison. Furthermore, this is a definition that is found in section 501 (7) of the 1958 Migration Act[11]. Basing on these facts, it is possible to denote that Billy fails the character test; hence the Minister can order for the cancellation of the visa belonging to Billy and his deportation to New Zealand. However, it is important to denote that failure to pass character test is not a guarantee that the visa of an immigrant will be cancelled. Ministerial Directive 21 provides other factors to consider before cancelling a visa[12].   

The directive identifies three important factors to consider before visa cancellation. These factors are, if the individual is a danger to the Australian community, if his actions breaches the expectations of the Australian community and the decision will protect a child who is aged below 18 years[13]. Paereau v the Minister for Migration is an important case where the court had to determine the importance of protecting the needs of a minor when it comes to the cancellation of a visa[14]. From the ruling of this case, the court denoted that the interests of children who are near the victim must be assessed before coming up with a decision on whether to cancel or not to cancel the visa of an immigrant.

On this basis, by carefully looking at these considerations, it is possible to denote that the decision to cancel the Visa of an immigrant lies on the manner which the immigrant relates with the Australian community. This is because the three major conditions identified by Directive 21 are aimed at protecting the community from any harm, which may occur because of the reckless behavior of an immigrant[15]. Therefore, considering the behavior of Billy, his presence in Australia is not guaranteed, because he fails all the consideration identified under Ministerial Directive 21; hence, he is a danger to the Australian community.

However, Directive 55 identifies circumstances when an individual would not be deported if he fails the character test. This includes if members of his immediate family are Australian citizens, have a permanent residency status in Australia, has a considerable business interests in the country, he is vulnerable to social and financial problems because of his age, etc. Basing on these facts, if the Minister decides to cancel the visa belonging to Billy, he can appeal to the High Court or even the Federal Court[16]. The basis of appeal must be on error of the law, as opposed to error of the facts. This is a precedent that has been set in the case of Pareau v The Minister (2013), and a number of case laws that were heard in these courts.       

Finally, there are chances that the Minister of Migration might cancel the visa belonging to Billy; hence, ordering his deportation. This is because Billy fails the character test established under section 501 (6). Furthermore, Billy has been sentenced to five years in prison, and hence, he is guilty of an offence that can be categorized as a substantial criminal offence. Furthermore, he is a danger to the Australian society because of his history of molesting minors. Therefore, the minister can order for his deportation. However, he can appeal against the decision of the minister at the Federal Court or the High Court.

 

Bibliography

Books, Articles and Journals

Australian Immigration Law & Practice - Continuing Professional Development (University of New South Wales, Faculty of Law, Centre for Continuing Legal Education, 2010)

Billings, Peter, "Irregular Maritime Migration And The Pacific Solution Mark II: Back To The Future For Refugee Law And Policy In Australia?" (2013) 20 International Journal on Minority and Group Rights

Crock, Mary E and Laurie Berg, Immigration, Refugees And Forced Migration (Federation Press, 2011)

Judicial Review In Migration Matters (Dept. of Immigration and Multicultural Affairs, 2001)

Nieuwenhuysen, J. P, John Higley and Stine Neerup, Nations Of Immigrants (Edward Elgar, 2009)

Noll, Gregor, "The Laws Of Undocumented Migration" (2010) 12 European Journal of Migration and Law

Ogawa, Megumi, "Notice Of Invitation To Appear: The Statutory Notice Period In The Migration Review Tribunal And The Refugee Review Tribunal In Australia" (2013) 3 International Journal of Public Law and Policy

Seuffert, Nan and Tahu Kukutai, Under The Eye Of The Law (Legal Intersections Research Centre, University of Wollongong, 2011)  

Stephenson, S., "Constitutional Reengineering: Dialogue's Migration From Canada To Australia" (2013) 11 International Journal of Constitutional Law

Tarakson, Stella, The Law In Australia (Heinemann Library, 2007)

Vrachnas, John, Migration And Refugee Law In Australia (Cambridge University Press, 2007)

Legislations and Cases

Migration Act 1958 section 201

Migration Act 1958 section 499

Migration Act 1958 section 501A

Migration Act 1958 section 501 (6)

Migration Act 1958 section 501 (7)

Paerau v Minister for Immigration and Border Protection [2013] FCA 1119; 138 ALD 83

 Wei v Minister for Immigration and Border Protection. [2015] HCA 51.

[16] Stella Tarakson, The Law In Australia (Heinemann Library, 2007). 

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